Eric Muller, a law professor at UNC who publishes the Is That Legal blog, muses whether Michael Chertoff, who was nominated yesterday by George Bush to head the HUGE Department of Homeland Security (22 agencies and 180,000 employees), agreed to give up a lifetime federal appointment to the Bench for a political position because he may have been given a promise for a seat on the Supreme Court.

Chertoff, is, um, well, Jewlicious, even if he did serve as the Republicans’ Counsel on the Senate Whitewater Committee. A rabbi’s son, he is respected for his abilities in the courtroom, and was able to succeed in public and private practice. His resume speaks of some success and ability, working for Latham & Watkins, one of the country’s biggest law firms as a partner, and also having great success as a United States Attorney when he had some significant success prosecuting crime families in New York in the ’80s, which cemented his reputation and served as a launching pad for his career.

Just prior to his appointment as a judge, Chertoff had been the Department of Justice Assistant Attorney General for the Criminal Division. In this position, he has been responsible for much of the US policy regarding its legal treatment of detainees related to the “war on terror.”

Eric Muller reviews a talk that Chertoff gave (see Symposium Blogging IX) where he discussed the controversial role the Department of Justice played in enabling the imprisonment of suspects. In his talk, Chertoff spoke of:

What he did know, though, was this: (a) the enemy had masqueraded as friendly visitors, (b) the enemy had to have had a complicit (or perhaps an innocent) support network–people who’d provided shelter, money, sustenance, and so on, and (c) there was no way to distinguish between the many well-meaning visitors to the USA and the few who meant us harm. “It was not just like looking for a needle in a haystack,” he said. “It was like looking in a haystack for a needle disguised as a stalk of hay.”

The limited information they had suggested a realistic possibility of further strikes. (And, he pointed out, it still does.)

People who make decisions under this sort of pressure, and in this state of imperfect information, he noted, do not have the benefit of hindsight. They must act.

He also defended what critics consider heavy-handedness (and perhaps illegality of the DOJ’s actions) in his talk:

(1) there was, he said, no government suppression of dissent or criticism; (2) the PATRIOT Act, notwithstanding all of the protests against it, did not purport to push law beyond existing 4th Amendment doctrine. Even the much-reviled sneak-and-peak warrants, he asserted, had the endorsement of well-established 4th Amendment precedent; (3) military commissions have not yet been used, do not apply to citizens, and admit of the possibility of limited habeas corpus review (which FDR’s WWII commissions didn’t); (4) there was no evacuation or detention of citizens or aliens on the unadorned basis of ethnicity; (5) all detentions had a lawful basis; (6) all people detained as enemy combatants were arrested in battle, and there was no detention that approached the magnitude of the detentions during the Civil War.

All in all, he seems to be a very capable person who happened to play an important role at a time when the US has been transformed and has entered into a war with militant Muslims such as Bin Laden. He will now take a position that will give him extraordinary influence upon many spheres within the life of Americans and the success of the US in this war. I certainly hope he succeeds and manages to achieve this success in a way that preserves as much of the democratic and free nature of our society as possible.

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  • Mike Chertoff is Jewlicious?? Holy crap. Yeah he’s Jewish, but so is Noam Chomsky. Chertoff has conducted himself in the past in a way that would make him perhaps one of the leading enemies of the Constitution and the rule of law. His attitude is basically that in a time of crisis, the government ought to be free of any pesky hindrances such as the Constitution, the criminal code or rules of civil procedure, when prosecuting a suspect. And how does one define a time of crisis? However the hell the government decides to define it.

    The idea that this recent appointment puts Chertoff that much closer to a Supreme Court nomination is frightening, to say the least, with it’s implications on civil liberties in the US. There’s tons of stuff online about this scary Mr. Burns-like guy. You can start by reading this.

  • Um, CK, first of all, please allow me to request that you remove the Simpsons cartoon. the resemblance is not what people make it out to be and it is a little distasteful to me that we’re representing him like this. Oh hell, I don’t care, keep it if you must, but allow me to state that he doesn’t look like that.

    Second, before I posted that post, I had read that very same Counterpunch article and decided it didn’t deserve a place among my links because, let’s face it, Counterpunch, as a publication, is one of the most severe critics of this Administration. Since I don’t trust many of their articles on other topics because of their severe political bias, I also felt this article was in the same vein and had an ideological axe to grind.

    Now, I am not too much of a fan of this Administration or of John Ashcroft’s Justice Department for many reasons, but before I posted the above, I did read this slightly less biased source (pdf link) and came away with the knowledge that on many social issues, he is very different from his colleagues in this Adminstration. That was very informative to me, not to mention, Jewlicious-like.

    That organization, like Elaine Cassell and many others, including moi, does take issue with certain actions regarding detentions, trials, etc. that this Administration has taken and believes that they warrant some concern. However, as Eric Muller points out, Chertoff believes that we must take certain actions in a time of war with an a complex enemy such as the one we have to face in this war, and that he believes that the rules and laws they’ve passed do not violate the rule of law or go to an extreme as described by his critics.

    Point is that he’s not a zealot or an extremist. He seems to be a centrist on social issues. He has not shown any type of inclination to turn the US into a totalitarian country, and actually took the time to speak publicly about why the attacks in this regard may be unwarranted. He is a Harvard JD, magna cum laude, who clerked on the SC, practiced at Latham, destroyed crime families in NJ so that Muffti can have his huevos with no shakedowns, and who left very lucrative private practice twice now in order to serve the government. He also just agreed to leave a permanent plum job on the 3rd Circuit Court of Appeals to tackle what will be a complex and formidable challenge (probably thankless, as well) in running this department. Other than his support of Ashcroft’s Justice Department in a world that did turn topsy turvy on 9/11 for the US, I have difficulty not seeing him as Jewlicious.

    On the other hand, we will now have an opportunity to watch what he does in his new role and can better determine what type of person he might be.

  • Some of the biggest douchebags I know worked at Latham. If you think New Jersey is now organized crime free, well, you haven’t been to Jersey lately. War justifies taking certain liberties with civil rights, but not all and certainly not, in my ever so humble opinion, the sorts of liberties Ashcroft and Chertoff were trying to promote.

    The Monty Burns / Mike Chertoff graphic was inspired by Eric Muller, who knows Chertoff waaaay better than either of us. Plus people like pretty pictures.

  • So, we, at Jewlicious, are not promoters of Latham & Watkins. Noted.

    Along those lines, I just want to note that some of the biggest douchebags I know lived in Montreal. Does that mean anything?

    For the record, they like him ( Former Latham Partner Michael Chertoff Nominated as U.S. Secretary of Homeland Security
    Latham & Watkins is pleased to congratulate Mike Chertoff on his nomination to serve as U.S. Secretary of Homeland Security. Mike worked as an associate (1980-83) and a partner (1994-2001) for ten years in the firm’s Litigation practice, during which time he exhibited brilliance, tenacity, dedication to the job at hand, and the highest level of skill and professionalism. These attributes will surely serve him and the country well in the position of Secretary of Homeland Security. With great pride, we wish Mike much success in the confirmation process and in his service to the country.

    I guess he goes by “Mike.”

  • Well I don’t hate the firm. I’m just saying that having worked at Latham & Watkins is no guarantee of anything and that I in fact know one or two individuals who have worked there who are total douchebags. I won’t even mention some of the firm’s shady clients cuz, after all, everyone is entitled to the presumption of innocence and to the best legal representation they can afford.

  • I’m sure Latham is happy to represent “shady” clients if they can afford their rates. You’re only “shady” when you live under a tree and otherwise innocent until proven guilty. 🙂

  • You guys are amazing. Can’t you be any more anti-Republican? How retro of you to spout the Democrat line… hmmm, would that be the same demo line that refuses to condemn anti-semitism in the Democratic Party? Liberal Macht Frei, huh?

  • Good grief. Dude. I’m Canadian. I am neither Republican nor Democrat. I see bullshit, I call it, regardless. And Chertoff is not without problems. That’s all.

  • TM wrote: Along those lines, I just want to note that some of the biggest douchebags I know lived in Montreal. Does that mean anything?

    Oh yeah? Me too! Might it be the same guy?

  • Dude looks like Mr. Burns. Duh. As head of the entire US federal law enforcement apparatus, it’s rather telling that his status as the simultaneous citizen of another nation -Israel- represents a slight conflict of interest, that nobody seems to notice. THAT kind of immunity is EXTREMELY Jewlicious. Not to mention that Chretoff’s wife is an ADL bigwig, and the etymology of his Slavic name means ‘of the devil.’ Mensch!

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